A new report from a leading housing advocacy group is urging Massachusetts’ leaders not to rest on their laurels and assume a recent big change in state zoning law will fix the state’s housing problems on its own.
While the MBTA Communities zoning reform is supposed to start bearing fruit this fall and winter, a new report from the Massachusetts Housing Partnership says obstacles like obsolete environmental rules, spurious appeals of zoning variances, stronger regional planning and an insufficient public transit system will still keep housing production lower than it needs to be to meet the state’s needs.
“From our experience, the [Healey] administration is all ears about potential policy changes and looking to do things differently around housing,” said MHP Executive Director Clark Ziegler. “With the legislature it’s a little difference. Without being critical there’s a tendency to say, ‘We did something big on housing so let’s wait for a couple years to see if it works.’ I don’t think we have time, on housing, to do that.”
MHP’s new report, “Building Momentum,” groups 27 policy recommendations into eight priority areas, from familiar calls to legalize accessory dwelling units and reform off-street parking requirements to more unusual suggestions to use existing state housing money to help bring down construction costs. The nonprofit’s leaders hope to partner with political leaders, community and environmental groups and real estate industry groups on specific policy changes and legislative proposals in the different priority areas, said MHP Chief of Public and Community Engagement Dana LeWinter.
Abutter Appeal Reform
For example, MHP is hoping the Real Estate Bar Association might be open to crafting a joint proposal to reform how abutters appeal zoning variances, special permits and other local land-use decisions. While the Housing Choice legislation passed in tandem with the MBTA Communities law in 2021 allowed judges in these lawsuits to force plaintiffs to post up to a $50,000 bond to discourage so-called “frivolous” appeals that have no realistic prospect of success and are only intended to cost a development team time and money, Ziegler said that so far the measure hasn’t proven to be enough. A recent Supreme Judicial Court ruling also set an extremely high standard that judges must meet before imposing a bond, he said, limiting its usefulness.
Instead, MHP suggests requiring all appeals and lawsuits to first pass a three-person “review council” appointed by state housing and environmental cabinet secretaries and the umbrella group for the state’s regional planning agencies. This body would apply a test developed in cooperation with REBA to see if the plaintiff has a solid case. If not, the council would required the lawsuit-filer to post bond and, if they lose, pay the winner’s court costs and legal fees.
“Let’s learn from medical malpractice [where a similar system is in place in Massachusetts]. It’s not a perfect model, but it doesn’t take away anyone’s ability to file an appeal, and it weeds out frivolous cases. If you can’t convince a panel of experts, you have to proceed at your own risk,” Ziegler said.
Septic, Sewer Rules and Funding
Some of the report’s recommendations similarly reach beyond the zoning-focused concerns that dominate housing production conversations in Greater Boston’s inner towns and cities, like sewer system funding and laws that let local governments set septic regulations that exceed state standards.
“There was a period in the ’70s, after the Clean Water Act, that federal money covered new sewer systems, and that money is already gone,” Ziegler said. “We’re now paying for decisions by some communicates not to take advantage of that.”
The key, Ziegler said, is to make state funding for new, town-wide sewer systems or smaller, development-specific sewage treatment systems more predictable, in part using impact fees.
“It’s not a system where if a developer walks into town X it’s possible to know how that will work,” he said.
The report also notes the state has an opportunity to catalyze the adoption of modular construction techniques by setting aside a portion of the Qualified Allocation Plan housing tax credits for buildings that use this cheaper construction technique. The state’s high construction costs, which are as much as 20 percent above the national average, are often cited as a major contributing factor to the shortage of housing in Massachusetts and the relatively high prices charged to rent or buy new units.
“The scope of the need for more housing is large enough that every single community needs to be a part of it. There’s not a single city or town that couldn’t benefit from increased housing opportunity,” LeWinter said. “It’ll look different in every place, but there’s value in digging down into why the town center isn’t thriving anymore, why the schools have declining enrollment.”